State v. Malcolm J. Sanders

2019 WI APP 52
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP1310-CR

†Petition for Review Filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MALCOLM J. SANDERS,

DEFENDANT-APPELLANT.†

Opinion Filed: August 7, 2019
Submitted on Briefs: April 24, 2019

JUDGES: Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Concurred:
Dissented: Reilly, P.J.

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Tim Provis, Port Washington.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Hannah S. Jurss, assistant attorney general, and Brad D. Schimel,
attorney general.
2019 WI App 52

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 7, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1310-CR Cir. Ct. No. 2016CF677

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MALCOLM J. SANDERS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

¶1 GUNDRUM, J. Malcolm Sanders appeals from a judgment of
conviction entered after a jury found him guilty of two counts of delivering heroin,
as a repeater and as a party to a crime. He claims the Equal Protection Clauses of
the United States Constitution and Wisconsin Constitution were violated when the
No. 2018AP1310-CR

prosecutor used two of her peremptory challenges to strike from the jury panel the
only two African-American potential jurors. Because we agree with the circuit
court’s determination that the prosecutor did not engage in purposeful
discrimination, we conclude there was no equal protection violation. We affirm.

Background

¶2 During voir dire, the circuit court, the prosecutor, and Sanders’
counsel asked questions of potential jurors on the panel. When it was her turn, the
prosecutor’s first question was: “Is there anyone here who has … had a prior bad
experience with law enforcement?” Several potential jurors raised their hands.
Questioning continued in relevant part:

[Prosecutor]: …. I’m going to start with … Ms. [R.]

…. [W]hat I’m really asking here is whether … your
prior experience with law enforcement would affect your
ability to be fair in this case.

MS. [R.]: Yes.

[Prosecutor]: All right. And so does that mean that you
would count the testimony of law enforcement officers as
less credible than other witnesses, or is there some other
way where you think your ability to be fair would be
affected?

MS. [R.]: I wouldn’t—I have an issue with the police. I
have been pulled over for driving in the wrong area, so my
perception might be skewed.

[Prosecutor]: Okay. And so when you are evaluating
the testimony of law enforcement officers, would you
believe their testimony to be less credible simply because
they are law enforcement officers?

MS. [R.]: Yes.

[Prosecutor]: And so overall evaluating the evidence in
this case knowing that there’s likely to be testimony from
law enforcement officers, could you be fair?

2
No. 2018AP1310-CR

MS. [R.]: Yes.

[Prosecutor]: So in spite of what you told me regarding
your concerns, you think overall in this case you could be
fair?

MS. [R.]: Yes, but … I just do not feel comfortable
with this.

[Prosecutor]: Okay. So you have an issue of comfort.
But, again, comfort isn’t really the deciding question. The
deciding question is whether you can be fair, so you think
regardless of your comfort level, in the end could you
evaluate the evidence in this case fairly?

MS. [R.]: Yes.

….

[Prosecutor]: All right. How about the second row?
Anybody have a prior bad experience with … law
enforcement in the second row?...

(Hand is raised.)

[Prosecutor]: Mr. [O.]?

….

[Prosecutor]: Okay. So, again, … given your prior
experience, do you think you can be fair in this case?

MR. [O.]: No.

[Prosecutor]: All right. And you heard the questions
that I was asking Ms. [R.] Again, the overall question in
this case is regarding evaluating the evidence, evaluating
the testimony, which may include law enforcement. And
so based upon that, do you think you can evaluate the
evidence in a fair way?

MR. [O.]: Honestly, no.

[Prosecutor]: Okay. I would move to strike Mr. [O.]
based upon those answers.

[Court]: I am going to pry a little bit. Why do you think
you would be unable to be fair to both sides?

MR. [O.]: Personal reasons.

3
No. 2018AP1310-CR

[Court]: Well, … don’t you think other people on the
jury may have personal reasons that would affect their
decision? [Court discussion about “justice” being “always
blind and always in balance.”] …. [I]s there some reason
you would be unable to [decide based upon what the facts
dictate]?

MR. [O.]: Yes. I’m sorry. It is just personal reasons.

[Court]: I’m afraid I’m going to have to pry a little bit
more, sir.

MR. [O.]: I had a run-in when I was 16 with a cop.

….

MR. [O.]: And he threatened to beat my head in.

[Court]: Okay. Do you think all the police are like that?

MR. [O.]: I just—I don’t know. I just don’t trust them.

[Court]: [Discussion about being open-minded and jury
duty “bring[ing] people together from all backgrounds.”]

I don’t think you would suggest we have only jurors
consisting of people who have had good experiences with
the police, do you?

MR. [O.]: No.

[Court]: So if I let you off because you had one bad
experience with one bad police officer, what is going on?
I’m going to repeat my question, and answer it honestly,
and I’m not going to continue to examine you about it, but
is there any reason for me to think you are any less likely to
be fair to both sides than anyone else who is here?

MR. [O.]: Possibly. I’m just stuck in my ways right
now.

[Court]: I’m going to let the lawyers examine you
further. I’m going to deny your request, but you can
examine further on it if you want.

[Prosecutor]: Okay. I think you have answered
sufficient questions. So now is there anyone else in the
second row who I missed who has had a bad experience
with law enforcement?

(Hand is raised.)

4
No. 2018AP1310-CR

[Prosecutor]: Mr. [S.]?

MR. [S.]: Mm-mmm.

[Prosecutor]: And, again, I’m not going to try to pry
into details, but the question in the end … is whether you
can listen to the evidence and evaluate it fairly.

MR. [S.]: Honestly, I’m not sure. I would say I don’t
know, but based on my experience in the past, it probably
would bubble up feelings of stuff that has happened to me
in the past several times, and just to give a little detail, just
being racially profiled in the past, and I don’t know how
that would come up in this case, but I have had it happen to
me several times where I have just been pulled over
without just cause.

[Prosecutor]: Okay. So, again, you heard the judge talk
about people’s prior experiences, and the question I want to
ask you now is whether you think that you are less able to
be fair than anyone else on the jury.

MR. [S.]: Right now I don’t think so. I mean, I’m
saying I think I can be fair, but I’m just letting you know,
you know, that has happened to me, and like I said, I don’t
know how that is going to come into this case as far as a
reason for someone being pulled over or questioned or
whatever the case may be, but I’m letting you know that is
what happened to me in my past.

….

[Court]: Let me ask both of you gentlemen if the
evidence satisfies you beyond a reasonable doubt that the
defendant committed the crimes charged or either of the
crimes charged, would you be able to vote guilty?

MR. [S.]: I would say yes.

[Court]: Would you be able to vote not guilty if the
evidence did not come up to that standard?

MR. [S.]: Yes.

[Court]: Mr. [O.], how do you answer?

MR. [O.]: The second question, yes.

[Court]: What about the first question? If the evidence
satisfies you beyond a reasonable doubt that the defendant

5
No. 2018AP1310-CR

committed one or both of the crimes, would you be able to
return a verdict of guilty?

MR. [O.]: Possibly.

[Court]: Well, this one I’ve got to have an answer.

MR. [O.]: Yes or no?

[Court]: Yes, sir.

MR. [O.]: Yes.

….

[Prosecutor]: …. Now, as the judge has informed you,
this case does involve allegations of delivery of drugs, so
I’m going to ask a question about your personal
experiences. Have you or someone close to you like a
close family member or friend ever been arrested for a drug
crime?

(Hands are raised.)

….

[Prosecutor]: Okay. I’ll start in the back with Ms. [R.]
And, again, my question in the end, what I’m trying to
determine, is whether that past experience, whether
involving yourself or a close family member or friend,
would cause you to be unfair in this case knowing that this
case involves a drug allegation?

MS. [R.]: My husband did time in prison for selling
drugs.

[Prosecutor]: Okay. And do you feel that in your
husband’s case, he was treated fairly or unfairly?

MS. [R.]: He was treated fairly.

[Prosecutor]: And was that some time ago, or was it
recent?

MS. [R.]: Eight years ago.

[Prosecutor]: All right. So given that experience, could
you be fair in this case?

MS. [R.]: Yes.

6
No. 2018AP1310-CR

[Prosecutor]: Thank you. Is there anyone else in the
back row, whether you, yourself, or a very close family
member or friend who has been arrested for a drug crime?

(No response.)

[Prosecutor]: .... How about the second row here?

(Hands are raised.)

….

[Prosecutor]: So [Ms. S.] can you just give me a brief
description of the circumstances?

MS. [S.]: My son, and it was possession.

[Prosecutor]: Okay. Do you feel your son was treated
fairly or unfairly?

MS. [S.]: Unfairly.

[Prosecutor]: And was this a long time ago, or was this
more recent?

MS. [S.]: Within the last couple of years.

[Prosecutor]: Okay. Now, given your personal
experience with your son, do you think you would be able
to be fair in this case?

MS. [S.]: Yes.

….

[Prosecutor]: .… Has anyone here, you, yourself
personally, been charged with any crime?

(Hands are raised.)

[Prosecutor]: …. Mr. [G.] And so what were the
circumstances of that?

MR. [G.]: I was young. It was like 35 years ago. I was
in the Marines, and somebody hit me and I hit him back ….

….

MR. [G.]: …. It was like a really long time ago. It is
the only time I have ever been arrested. He hit me and I hit
him, and the charge was dropped ….

7
No. 2018AP1310-CR

[Prosecutor]: I appreciate the answer.

MR. [G.]: I have to admit it, I have been arrested.

[Prosecutor]: So would that affect your ability to be
fair?...

MR. [G.]: Not at all.

[Prosecutor]: Okay. Thank you. Anyone else who I
missed who you, yourself, have been charged with a crime?

(No response.)

[Prosecutor]: I see no other hands. All right.… Is there
anyone here who thinks that really drugs should be
legalized, illegal drugs currently like marijuana or cocaine
or heroin, that that should become legal?

….

[Prosecutor]: .... Mr. [F.] So my follow-up question is
regardless of your personal opinion, would you be able to
follow the judge’s instructions regarding the law in this
case?

MR. [F.]: Yes, absolutely.

….

[Prosecutor]: .… [I]s anyone familiar with the
difference between circumstantial evidence and direct
evidence? Anyone here who hasn’t heard that distinction
here before, something circumstantial versus something
direct?

(No response.)

[Prosecutor]: I see no hands. Is there anyone here who
thinks that circumstantial evidence is always going to be
[not as probative or as valuable as] direct evidence?...

….

[Prosecutor]: I see a few hands there. Now, what if the
circumstantial evidence was something like a fingerprint
that connects someone to a burglary? Would that
necessarily be worse evidence than an eyewitness?…

(Hand is raised.)

8
No. 2018AP1310-CR

[Prosecutor]: And that is Mr. [M.]? All right. So in the
end, the question that I’m getting to is whether you wi[ll]
fairly evaluate the evidence in this case, whether it is
circumstantial or direct.

MR. [M.]: I could, but if there was proof of prints, I
mean, that sums it up.

[Prosecutor]: Okay. So you think that kind of …
evidence could be quite strong?

MR. [M.]: Very strong, yes.

¶3 No other potential jurors responded to any voir dire questions, by
either the circuit court, the prosecutor, or Sanders’ counsel, in a way that might
concern the State. Following voir dire, the State and Sanders exercised their
allotted peremptory challenges, each striking five potential jurors from the panel.
The State struck Ms. R., Mr. S., Mr. O., Ms. S., and Mr. F. Out of the presence of
the jury, Sanders challenged the State’s striking of Ms. R. and Mr. S., alleging
they were struck because they are African-American. When the court asked the
prosecutor why she struck Ms. R. and Mr. S., the prosecutor responded:

Both of those individuals expressed having prior bad
experiences with the police, and although in the end they
indicated they could be fair, they were quite hesitant and
seemed to express feelings based upon their personal
experiences of not trusting law enforcement and maybe
looking more skeptically at law enforcement testimony
than other witnesses, and that is the reason they were
struck, which is also consistent with Mr. [O.]

The court accepted the State’s explanation as “race neutral” and not
“camouflage…. [T]he jurors came forward and acknowledged that they had
experiences that caused them to be feeling that the police had ill-treated them, and
that is not a sentiment exclusively held by blacks. There are plenty of white
people [who feel that way, such as] Mr. [O.]” The court continued:

In the end, I felt that they were qualified to make it to
this phase in spite of their—Mr. [O.] for sure at an earlier

9
No. 2018AP1310-CR

point when I deferred it or initially denied it, the answers he
had given clearly could have led to his exclusion from the
jury, but I’m a big believer in trying to keep people on if at
all possible. I don’t want them to go off because they
might not be fair. I want them to really think about it. In
the end, all three of them indicated a willingness to be fair.
That doesn’t mean that the district attorney has to accept
that that they would be ideal jurors for the State.

¶4 The circuit court found the prosecutor’s reason for striking Ms. R.
and Mr. S. to be “legitimate,” adding:

[I]f I look at this whole panel, I don’t think the district
attorney is off the wall in selecting these two as to be
among their five people they strike. I don’t think there is
any reason for me to conclude it’s because they are black.
It may be that derivatively they have had bad experiences
because they are black, but they are not being excluded
now because they are black ….

The court denied Sanders’ challenge to the prosecutor’s use of peremptory strikes.

¶5 During the trial, the State called five witnesses—three law
enforcement officers, a confidential informant who worked with the law
enforcement officers, and a codefendant of Sanders who testified to Sanders
selling him heroin on two occasions. Sanders presented no witnesses in his
defense. The jury returned a verdict of guilty on both counts against Sanders, and
the court later sentenced him. Sanders appeals.

Discussion

¶6 Sanders asserts the Equal Protection Clause was violated because the
State acted with discriminatory intent in striking the only two African-American
potential jurors. He claims the circuit court erred in seeing it otherwise and in
declining to keep those two potential jurors on his jury despite the State’s exercise
of its peremptory challenges.

10
No. 2018AP1310-CR

¶7 To succeed with his challenge, Sanders needed to demonstrate that
the prosecutor had “racially discriminatory intent or purpose” behind her decision
to strike these two potential jurors. See State v. Lamon, 2003 WI 78, ¶34, 262
Wis. 2d 747, 664 N.W.2d 607. A three-step process is involved with such a
challenge. See Batson v. Kentucky, 476 U.S. 79 (1986); Lamon, 262 Wis. 2d 747,
¶¶22, 27. First, a defendant must make a prima facie showing “that the prosecutor
has exercised peremptory challenges on the basis of race.” Hernandez v. New
York, 500 U.S. 352, 358 (1991). Second, if the showing is made, the prosecutor
must then provide a race-neutral explanation for why he/she struck the potential
juror(s). Id. at 358-59. Lastly, if the prosecutor provides such an explanation, the
circuit court must then “determine whether the defendant has carried his burden of
proving purposeful discrimination.” Id. at 359. “[D]iscriminatory intent is a
question of historical fact, and the clearly erroneous standard of review applies at
each step.” Lamon, 262 Wis. 2d 747, ¶45. Because the circuit court “is in the
best position to determine the credibility of the state’s race-neutral explanations,”
we give “great deference” to the court’s ruling as to whether the prosecutor had
racially discriminatory intent or purpose in exercising his/her peremptory
challenges. Id., ¶¶41-42.

¶8 Because the parties focus on the third step of the analysis, so will
we. The third step

requires that when the prosecutor offers a race-neutral
explanation, the circuit court has the duty to weigh the
credibility of the testimony and determine whether
purposeful discrimination has been established. As part of
this third step, a defendant may show that the reasons
proffered by the State are pretexts for racial discrimination.
The defendant then has the ultimate burden of persuading
the court that the prosecutor purposefully discriminated or
that the prosecutor’s explanations were a pretext for
intentional discrimination. Therefore, it is at this step that
the issue of persuasiveness and plausibility of the

11
No. 2018AP1310-CR

prosecutor’s reasons for the strike become relevant, and
“implausible or fantastic justifications may [ ] be found to
be pretexts for purposeful discrimination.”

Id., ¶32 (citations omitted; brackets in original).

¶9 The prosecutor indicated to the circuit court that she struck Ms. R.
and Mr. S., as well as non-African-American Mr. O., because they all “expressed
having prior bad experiences with the police … and seemed to express feelings
based upon their personal experiences of not trusting law enforcement and maybe
looking more skeptically at law enforcement testimony than other witnesses.”
Sanders’ counsel responded that Mr. S. “never expressed any hesitancy [in
indicating he could be fair] and, you know, it’s the very idea of why we need the
black people on the jury, because they are the ones who are harassed, you know,
by the police … and … they represent a cross-section of society.” The court found
the prosecutor’s explanation for striking Ms. R. and Mr. S. to be race-neutral,
credible, and appropriate and ultimately determined there was no reason to
conclude the prosecutor struck the two African-American potential jurors
“because they are black.” The court added that it saw no evidence the prosecutor
“purposefully exclude[d]” Ms. R. or Mr. S. “on the basis of the color of their
skin.”

¶10 On appeal, Sanders asserts: “[W]hat the State did not tell the court
below is that both of the black jurors’ reason for their bad experiences with police
was they had been pulled over for the non-existent crime of Driving While

12
No. 2018AP1310-CR

Black.”1 He develops no argument and provides no legal support related to why
the specific reason(s) a potential juror may be biased against a party’s case is of
consequence to the constitutional analysis. Instead, Sanders conclusorily
challenges the State’s expressed reason for striking the two African-American
jurors:

[S]ince it is only black people who are stopped for Driving
While Black, the State’s reason for striking these black
jurors was not race-neutral. If black persons who have
been stopped for Driving While Black, i.e. have been
discriminated against by police, are therefore ineligible to
serve on juries, then the State has based discrimination
upon discrimination. Thus, the State’s reason for striking
the black jurors was not race neutral and the [circuit]
court[’s] decision to sustain the strikes was clearly
erroneous.

¶11 Sanders fails to persuade. Non-African-Americans—such as
Mr. O.—certainly can, and do, also develop bias against law enforcement based
upon negative personal experiences. Whether the experiences are motor-vehicle
related or not is of no import, what matters is bias toward a party’s case. Each
instance of police contact provides an opportunity for a citizen to develop a sense
of either appreciation or disdain for the law enforcement officer(s) with whom
he/she interacts as well as “law enforcement” more generally. Similarly, a
potential juror, African-American or otherwise, could believe a loved one has been
treated “unfairly” by our criminal justice system in a broader sense, such as non-

1
The circuit court would have been aware of the reason Ms. R. and Mr. S. exhibited bias
toward law enforcement. Ms. R. told the court: “I have an issue with the police. I have been
pulled over for driving in the wrong area, so my perception might be skewed.” Mr. S. told the
court his “bad experience with law enforcement” was due to “being racially profiled .… I have
had it happen to me several times where I have just been pulled over without just cause.” To the
extent a specific “Driving While Black” argument was not made to the court, it was Sanders’
responsibility to make such an argument, not the State’s.

13
No. 2018AP1310-CR

African-American Ms. S. seemed to express during voir dire with regard to her
son. Bias against law enforcement and/or the criminal justice system more
generally is a legitimate and very understandable reason for the State, when given
the opportunity, to strike a potential juror. See United States v. Carter, 111 F.3d
509, 511-14 (7th Cir. 1997) (African-American potential juror’s antipolice
sentiment provided the prosecutor sufficient reason for striking the potential juror,
with the court adding, “Batson does not prevent consideration of a potential juror’s
own admitted prejudices just because the potential juror and the defendant are of
the same race.”); Edwards v. Roper, 688 F.3d 449, 454-56 (8th Cir. 2012)
(prosecutor’s strike of an African-American potential juror found proper where the
potential juror’s comments exhibited “some distrust of courts and prosecutors”);
United States v. Brooks, 2 F.3d 838, 841 (8th Cir. 1993) (African-American
potential juror’s experience as a victim of police brutality was a race-neutral
reason for prosecutor to strike the potential juror “even though the repeated
application of the reason might result in the disproportionate removal of black
prospective jurors”); cf. State v. Mendoza, 227 Wis. 2d 838, 854-56, 596 N.W.2d
736 (1999) (prospective jurors properly struck for cause after exhibiting “residual
hostility” and “resentment” toward criminal justice system in relation to their own
prior encounter with the system); State v. Oswald, 2000 WI App 3, ¶12, 232
Wis. 2d 103, 606 N.W.2d 238 (1999) (potential jurors must be struck for cause if
they exhibit “an intractable negative attitude toward the justice system”).

¶12 The prosecutor here struck all four of the potential jurors who
appeared to harbor some level of bias against law enforcement officers or the
criminal justice system more generally—two were African-American, two were
not. While each potential juror ultimately indicated he/she could fairly judge the
evidence in the case, based upon the totality of the voir dire discussion, we see no

14
No. 2018AP1310-CR

error in the circuit court’s determination that the prosecutor had a legitimate, race-
neutral reason for striking Ms. R. and Mr. S. from the jury and did not act with
racially discriminatory intent. That Ms. R. and Mr. S. alleged that their prior
experiences with law enforcement may have involved discriminatory intent does
not detract from the prosecutor’s legitimate, nondiscriminatory concern about
potential bias against the State’s case in this wholly unrelated proceeding.

¶13 While we recognize that Ms. R. and Mr. S. were the only two
African-American members of the jury panel, as our supreme court noted in
Lamon, the rule “is that the Equal Protection Clause is not violated simply
because there is a racially discriminatory or a disparate impact. Proof of racially
discriminatory intent or purpose [by the prosecutor] is required to show a violation
of the Equal Protection Clause.” Lamon, 262 Wis. 2d 747, ¶34. Sanders failed to
meet his burden to show such proof.2

By the Court.—Judgment affirmed.

2
Sanders also asserts two other “issues.” He claims his “right to confer with counsel
during plea negotiations” was violated when the circuit court denied his request for a continuance
of the final pretrial conference to allow him additional time to discuss with counsel a recently
produced incriminating statement of a codefendant. He also insists the circuit court denied him
“basic due process by forcing [him] to choose between his right to counsel and his right to [a]
jury trial” when Sanders complained, midtrial, about his counsel’s performance, and the court
ruminated about the possibility of adjourning the trial if Sanders and the State were both to agree
to an adjournment with the trial later proceeding as a court trial. Because Sanders completely
fails to develop a legal argument in support of these positions, we do not address them. See
ABKA Ltd. P’ship v. Board of Review, 231 Wis. 2d 328, 349 n.9, 603 N.W.2d 217 (1999)
(“[We] will not address undeveloped arguments.”); Industrial Risk Insurers v. American Eng’g
Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[W]e will not abandon
our neutrality to develop arguments” for the parties.).

15
No. 2018AP1310-CR(D)

¶14 REILLY, P.J. (dissenting).

“It was long ago settled, and many times reaffirmed, that a
conviction rendered by a jury from which Negroes have
been intentionally and systematically excluded will not be
allowed to stand.”

McKissick v. State, 49 Wis. 2d 537, 542, 182 N.W.2d 282 (1971) (emphasis
added).

¶15 Malcolm J. Sanders is black. At his trial, all of the black jurors were
struck by the prosecutor despite their assurances that they could fairly hear the
evidence. When the court asked the prosecutor why she struck all the black jurors,
she replied that they all had “prior bad experiences with the police,” and despite
their assurances that they could be fair, she struck them because “they were quite
hesitant and seemed to express feelings based upon their personal experiences of
not trusting law enforcement and maybe looking more skeptically at law
enforcement testimony than other witnesses, and that is the reason they were
struck.” Majority, ¶3. Under the Batson1/Lamon2 standard of review, the judge
was presented with the option of calling the prosecutor a liar or accepting the
prosecutor’s “race-neutral” reason. See Flowers v. Mississippi, 139 S. Ct. 2228,
2241 (2019) (“The trial judge must determine whether the prosecutor’s stated

1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
State v. Lamon, 2003 WI 78, 262 Wis. 2d 747, 664 N.W.2d 607.
No. 2018AP1310-CR(D)

reasons were the actual reasons or instead were a pretext for discrimination.”)
(citing Batson v. Kentucky, 476 U.S. 79, 97-98 (1986)).

¶16 It is a perversion of justice to accept the reasoning that because we
have unfairly treated blacks (or any class of people), we can then use our wrongful
acts to prevent blacks from serving on juries. Utilizing our unfair treatment of
blacks as a valid “race-neutral” reason to keep blacks off juries is itself
discrimination. See Discrimination, BLACK’S LAW DICTIONARY (10th ed. 2014)
(“Differential treatment; esp., a failure to treat all persons equally when no
reasonable distinction can be found between those favored and those not
favored.”); see also Flowers, 139 S. Ct. at 2240-41 (“[T]he Batson Court
emphasized that ‘the central concern’ of the Fourteenth Amendment ‘was to put
and end to governmental discrimination on account of race.’”).

¶17 This is not a failure of the police. This is a failure of the judicial
system. Our history of racism against blacks and our recent judicial sanctioning of
racial profiling has infected our justice system with a cancer that is now
metastasizing into the constitutional right to a jury. See State v. Wright, 2019 WI
45, ¶¶32-34, 386 Wis. 2d 495, 926 N.W.2d 157; State v. Floyd, 2017 WI 78, ¶¶26-
28, 377 Wis. 2d 394, 898 N.W.2d 560; State v. Brown, 2019 WI App 34, ¶¶19-21,
388 Wis. 2d 161, 931 N.W.2d 890. The jury is a foundation of our justice system
as it removes the government from being the judge of whether one committed a
crime. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“The purpose of
a jury is to guard against the exercise of arbitrary power—to make available the
commonsense judgment of the community as a hedge against the overzealous or
mistaken prosecutor and in preference to the professional or perhaps
overconditioned or biased response of a judge.”); see also Blakely v. Washington,
542 U.S. 296, 305-06 (2004) (The right of a jury trial “is no mere procedural

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No. 2018AP1310-CR(D)

formality, but a fundamental reservation of power in our constitutional
structure.”); Parsons v. Bedford, 28 U.S. 433, 446 (1830) (“The trial by jury is
justly dear to the American people. It has always been an object of deep interest
and solicitude, and every encroachment upon it has been watched with great
jealousy.”). The government is putting itself in the jury room by systematically
removing an entire class of citizens from serving on juries.

¶18 “Equal justice under law requires a criminal trial free of racial
discrimination in the jury selection process.” Flowers, 139 S. Ct. at 2242. The
Batson/Lamon standard of review is an illusion.3 The “race-neutral” reason
offered by the prosecutor is per se discriminatory and requiring our trial judges to
call out prosecutors as liars to defeat these easily stated “race-neutral” reasons is
unworkable. I respectfully dissent.

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Justice Thurgood Marshall’s concurrence in Batson v. Kentucky, 476 U.S. 79 (1986),
highlighted the problem with the standard of review:

[W]hen a defendant can establish a prima facie case, trial courts
face the difficult burden of assessing prosecutors’ motives. Any
prosecutor can easily assert facially neutral reasons for striking a
juror, and trial courts are ill equipped to second-guess those
reasons. How is the court to treat a prosecutor’s statement that
he struck a juror because the juror had a son about the same age
as defendant, or seemed “uncommunicative,” or “never cracked
a smile” and, therefore “did not possess the sensitivities
necessary to realistically look at the issues and decide the facts in
this case”? If such easily generated explanations are sufficient to
discharge the prosecutor’s obligation to justify his strikes on
nonracial grounds, then the protection erected by the Court today
may be illusory.

Id. at 105-06 (Marshall, J., concurring) (citations omitted); see also Lamon, 262 Wis. 2d 747,
¶¶94-96 (Abrahamson, C.J., dissenting).

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